An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 

Published July 1, 2007

TABLE OF CONTENTS:

RECALL THE BOARD

REMOVE SERVICE PROVIDERS

STOP DOUBLE-TAXATION AT COUNTY/CITY COMMISSION LEVEL

CONCLUSION


With Governor Charlie Crist signing community association bill S902/H 433 into law we close the chapter of another legislative session that gave service providers everything -- and homeowners and condo owners nothing! Just adding more legal mumbo-jumbo to more or less unenforceable provisions for homeowners' associations.

  

And since published numbers already indicate that the promised savings (?) from property insurance and property tax reform don't amount to too much, we need to find ways to stop the financial bleeding in our communities!

 

Financial mismanagement, uncontrolled spending, kickbacks and even clear embezzlement add even more burden to our already overburdened finances. Much of this waste is avoidable. And -- as we have seen -- is often protected by the service providers that have taken control of our communities. And since our counties are fighting reductions of property tax -- we have to stop the double-taxation caused by association dues AND property taxes.

Don't get me wrong, there are many good board members in our associations. But temptation is huge, since the funds are less protected than a cookie in a cookie-jar without a lid! And there are big amounts at stake! Let's face it, how safe are reserve funds if a board of directors can use those funds for its pet-projects without having to fear any punishment for violating the law? If your directors feel like it, they can waste your reserve funds, spend your money on their pet-projects and laugh at your complaints.  And if they need more money, they levy a special assessment then foreclose on your home if you don't pay immediately! 

It is pretty obvious that our legislators -- particularly the leadership -- are not interested in providing relief for homeowners in mandatory associations. 

It’s just time to help ourselves. 

 

Let's just face it: FS 720, the statutes supposedly regulating homeowners' associations, are laws without teeth. Most of us just don't have the funds to fight for our rights by hiring an attorney and waiting for a trial with a dubious outcome. Even if you receive a favorable ruling, what did you really achieve?

 

The only provision that really works for the homeowners is FS 720.303(10)  RECALL OF DIRECTORS

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Recall works like a charm if you follow the guidelines to the dot! It's the fastest and least expensive way to create necessary changes in your community!

The actual process is very simple. We have complete web pages with forms, guidelines, tips and arbitration rulings. If you want access, please send an e-mail to info@ccfj.net 

Please give us the exact name of the association, number of units/homes in your community and names of association law firm and management company (if applicable!). We will contact you with the necessary info and we will help you in the process. According to Florida Statutes you don't need any attorney; you have the right to use a QUALIFIED REPRESENTATIVE. 

The actual cost: Copying the petition forms, possible mailing to out-of-town owners (if necessary) and the cost for a local process server (Differs from $25 - $35). THAT'S JUST IT! 

We have helped many owners -- with a success rate of 100% -- so far!

Please see as well: HOW-To Page

A malfunctioning association is not only the fault of the board members. Even if they are officially in charge, they often rely on the professional advice of association attorney and manager, who often cause the problems the owners complain about. We have seen often enough that attorneys and managers are siding with the sitting board. Attorneys often help boards to avoid showing public records upon requests and give owners the feeling that things are being hidden. Attorneys and managers often act on behalf of the sitting board and try to help them to stop the recall. Many of these so-called "professionals" haven't figured out yet that they are supposed to work for the association, not a few board members with a private agenda.

The solution: As soon as the recall is certified, fire attorney and manager. 

It is a proven fact that the new board can work much smoother without the interference of these service providers, who often even try to get the old board back into office!

Most of the financial difficulties and other problems experienced by homeowners in condominiums and homeowners’ associations result from badly written governing documents.   Those documents usually give the board dictatorial control, a left-over from the time of developer rule, with little opportunity for homeowners to rein in runaway boards.  Fortunately, it's possible to amend the governing documents to prevent future boards from exploiting the loopholes in their governing documents and acting without the approval of the majority of the membership to levy special assessments, raise assessments excessively, borrow money for unwanted projects, and numerous other actions that cause harm to the owners. Suitable amendments to the governing documents can either replace the dangerous provisions or install otherwise missing provisions that allow or encourage abuse of homeowners' rights by dictatorial boards and self-serving individuals.  Those amendments are enforceable rules prohibiting such practices.  For more detailed instructions please read the educational book: "Creating Home Owner & Condo Documents -- How to Protect Your Con-Dough!" by Dr. David I. Goldenberg. His condo and HOA document templates will help you to make the necessary changes -- and stop the dictatorial practices in the future. It's a certain recipe to avoid future headaches in your community. Take away the dictatorial tools and you will have a peaceful community!

Everybody complains about high property taxes, but nobody really does anything about it! Have you ever figured out that you are being double-taxed if you live in a mandatory association -- especially if you live in a gated community with private roads?
Have you ever figured out that the owners outside your community pay the same property taxes as you pay, but those owners receive all the regular services for free?  You name it and it’s included for the owners who don’t live in associations -- road maintenance, street lights, easement mowing and retention pond service.  However, in your community most of these services are paid from your association dues, creating a double-taxation. Despite the fact that you are paying the full property tax, your county or city government delivers only part of the services and pockets the rest without giving you anything in return.

Why do you think our local governments demand that developers create mandatory associations?  

This has to change!  We can no longer afford to pay double-taxes just because we live in an association! Take a few of your neighbors and see your local commissioner. Make it clear that you are no longer willing to be double-taxed. He is your local elected official, elected with the votes of you and your neighbors. Just let him know that you are open to suggestions regarding certain credits or other benefits for your community -- if he intends to get re-elected. In order to push the issue, take a few neighbors from your neighboring communities. These commissioners wanted you to live in mandatory associations -- show them the voting power your community has! Politicians are playing hardball with you -- remember your tax money being used by your city and county government to lobby in Tallahassee against property tax cuts?  Life always works both ways! Now it's our turn!

Mediation only works if both parties are willing to discuss a settlement in good faith. During meetings of the 2004 HOA Task Force -- when the initial mediation requirement was created in FS 720.311 -- all kinds of promises were made that mediation would be a feasible solution at low expense.

Actually, mediation turned out to be a total failure, because boards and their attorneys in many cases didn't come to the table in good faith. In many cases it turned out to be a total waste of money. It doesn't help if the attorney for the association spends valuable time to deliver long speeches -- and certain mediators keep trying to intimidate homeowners with the threat of huge legal fees if they don't settle. The costs are the same -- so save your money for the real thing!

 

It turned out that attorneys as mediators had the worst success record and often failed the parties -- but charged the highest hourly rates.

 

Now exactly these lawyers are chosen -- according to the rewritten provisions of FS 720.311 to be the ones to hold the mediations. What does it tell you? The mediation provisions in FS 720 are just another provision written by lawyers for the benefit of lawyers with nothing else in mind but adding to their income. This has absolutely nothing to do with justice or finding feasible solutions: It's just another money-making machine for attorney’s fees!

 

The STATUTORY OFFER TO PARTICIPATE IN PRE-SUIT MEDIATION should be considered by owners as a warning for upcoming litigation. Nothing else! Otherwise, it's a plain waste of money!

 

Here is my suggestion how to deal with this issue in order to follow the statutes and avoid the problem created by this provision: "If you have failed or refused to participate in the entire mediation process, you will not be entitled to recover attorney's fees, even if you prevail."

The statute doesn't tell you how long you have to participate. You follow the words of the statutes if you show up, introduce yourself, state your version of a settlement, ask for agreement from the other side: YES or NO will do! In case of a NO, declare the mediation over and leave. Nothing in the statutes requires you to listen to long -- and expensive -- speeches of the association attorney. His clock is ticking -- and so is the clock of the mediator!

If you get the pre-suit mediation offer, pick the mediator closest to you with the lowest hourly rate. Watch -- some charge a minimum of two hours!

Save your money for the lawsuit that might follow -- we have seen quite a few examples where association attorneys just used mediation as another intimidation tool. Don't forget, in front of a judge they have to come up with

facts -- not just empty threats! Quite a few of these specialized attorneys are just blowing smoke!

 

Don't forget, if the other side had wanted a feasible agreement they could have offered it without adding the cost of mediation. Boards still have the option to sit down with a homeowner and find a solution, without creating legal fees. Their willingness to waste more money on legal fees is already proof enough that they don't act in good faith!

 

If you are the aggrieved party, make the pre-suit mediation offer by naming five certified mediators as required (Lists are being prepared). Don't bother to use your own attorney to take with you to the mediation session -- it's more wasted money! Consider mediation as a necessary evil, because it just adds money in the pockets of attorneys! Money you could better use for court costs!

 

Example: Record Request

If you followed the rules of FS 720.303(4) +(5) and your association didn't oblige, there is really not much to mediate. You have the right to the $500 penalty and the cost of the procedure. The law is very clear! Mediation is done with a straight YES or NO! No lengthy arguments, no ifs and no buts!

Use your money for filing fees with your local Small Claims Court -- you get a free mediation there anyway!

 

If the specialized attorneys wanted it this way -- they were behind this bill -- then let's play their game -- but play it our way! Don't be intimidated -- they have no special rights. They are the hired hand of your board and should realize that their actions should represent the interests of the association members -- not just some board members with a personal agenda!

Lengthy and costly mediation is definitely not in the interest of the association and its members! And definitely not in your best interest!

 

Never forget: You call the shots -- nobody else does!

It seems somebody is really eager to see expired deed restrictions revitalized. In 2004 somebody sneaked FS 720.403-720.407 into the HOA Task Force bill at the last minute, allowing formerly mandatory homeowners' associations to revitalize their deed restrictions. Amazingly enough, revitalization in that form was never discussed during the actual HOA Task Force meetings. Guess why?

Now the legislature in its so-called wisdom created Florida Statute 712.11, allowing formerly voluntary associations to revitalize their expired deed restrictions. In my opinion it's a clear violation of private property rights. People who bought homes in older communities with expired deed restrictions suddenly face the fact that some power-hungry neighbors try to recreate restrictions that had been expired long before they purchased their properties. Isn't it funny that owners are always told they signed contracts and have to obey them, but when it's convenient for the service providers laws are created that overthrow existing rights? Owners who had sold their homes in mandatory associations because of dictatorial conditions suddenly find themselves in a new association in the midst of more fights about association problems. I guess one day somebody will stand up and fight these laws that defy any private property rights that are the foundation of our nation.

If you live in a neighborhood where some neighbors try to revive a long-dead association, make sure that they follow the rules exactly. Any revitalized deed restrictions can't be more restrictive than the ones that expired. A voluntary association stays a voluntary association; you don't have to participate. Don't forget, being part of an association creates extra liability, especially if you have a power-hungry board that is sue-happy, pushed by some of the infamous attorneys who like to "create" lawsuits. You can't be forced to pay dues; there is no fining, lien and/or foreclosure power. These are communities living by intimidation! Please don't believe the fairy tale of “improved property values.” You can be sure that nobody wants to buy a home in a community riddled with lawsuits!  When you need enforcement in your neighborhood, call Code Enforcement. It's free and doesn't create legal bills for your neighborhood. And since you already pay high property taxes, let the counties/cities work for their money.

As soon as you hear neighbors filing for revitalization of deed restrictions, contact the Department of Community Affairs, responsible for supervising the revitalization process. Make sure that only the old deed restrictions are revitalized, nothing added or made up. 

You might want to contact the Department of Community Affairs (DCA). The person normally in charge of the revitalization process is Leslie Anderson-Adams, Esq.. Please contact her and make sure that everything is done according to the law. We have seen many filings where boards tried to cheat and add some extra restrictions.

If the revitalization process goes to court, make sure that you name each of the directors personally in the lawsuit. Remember that they